Panel on Democracy, Voting Rights, and the Courts: 4th National People of Color Legal Scholarship Conference--American University Washington College of Law 21-24 March 2019

The 4th National People of Color Legal Scholarship Conference takes place in a beautiful setting, at the American University Washington College of Law in Washington, D.C., 21-24 March 2019. For more information see HERE. Great thanks to American's Dean Camille Nelson for the vision to realize this important gathering. 

I am honored to be part of a a panel, Democracy, Voting Rights, and the Courts, considering aspects of some of core issues of the organization and functioning of our Republic.  

Abstracts of the panel presentations follow. 

0. Panel 1B: Democracy, Voting Rights, and the Courts Room N102 (Warren 1st Floor) 
   
   
• Larry Catá Backer (Penn State): Thinking About the Sort of Democracy Worth Preserving and Safeguarding
Since the 1960s, there has been an almost singular focus on attaining and preserving the right to vote as a central element in the march toward deep integration into the U.S. The question—is this effort far too narrowly focused on a particular vision of democratic participation? The paper argues that in the contemporary historical context, any singular focus on voting, and the principles of exogenous democracy that it represents, ignores an important alternative, endogenous conception of democratic participation. Current historical conditions may require the reconsideration of theories of democracy (as concept and as institutionalized) that better reflects both the conceptual foundations both Western liberal and Marxist Leninist theories, and the national context in which each are applied. The paper starts by considering the value and limitations of traditional exogenous democracy, one performed through voting and founded around principles of representation. It then considers the possibilities of the value of a theory of endogenous democracy grounded in principles of accountability and consultation. It ends by suggesting why it is time to bring democratic principles into government; voting people into government is not enough. To that end it considers the way that endogenous democratic principles have emerged in other states and might be expanded in the United States. It provides a theoretical model that might serve as a basis for reorienting pro- democratic action from voting to the business of the apparatus of the state itself.

• Katherine Culliton-González (National Hispanic Bar Association) – moderator USCCR 2018 Statutory Report on Voting Rights 
  
  
• M. Alex Evans (Illinois - Urbana): Carolina Goddam: A Sixty-Year Struggle for Voting Rights and Public Education
  For this paper, I sought a deeper, richer context behind racially disproportionate school pushout/suspension statistics in Wake County Public Schools (WCPSS) located in and near Raleigh, North Carolina. As the 15th largest school district in the nation, and the 9th most racially disparate school district according to national suspension/expulsion data, I found WCPSS an appropriate site for interrogation. I was interested in whether or not— and if so, what ways—modern day educational policy mimic desegregation era educational policy around public schooling. I utilized an ethnographic mixed methods approach including in-depth interviews, participant-observation, suspension hearings, and archival documents. By working with WCPSS’ community equity leadership team, I was able to get a clearer sense of the work that local organizers have engaged in for racial equity for over twenty years. And through working as a substitute teacher, I was able to get a pulse for issues of race and inequality that continue to plague schools today by informally speaking with students and teachers. I interviewed community leaders from local, district, and state levels such as parents, teachers, grassroots activists, attorneys, school district administrators, and state lawmakers. While some participants that lived through the desegregation era spoke to their experiences of advocacy during Jim Crow, others spoke to their political engagement relating to the recent resurgence of partisan North Carolina politics surrounding voting and education. Across generations, institutions, and organizations, the denial of equity through voting rights and access to public education are the threads that bind their experiences together. 
  
  
• Paul Gowder (Iowa): Building We the People: Frederick Douglass and Jürgen Habermas in Conversation
  This paper approaches two problems in parallel: the democratic legitimacy of American constitutional institutions and political outcomes, and the normative ideal of popular sovereignty. It defends the following claims: 1. The conventional "mechanical conception" of popular sovereignty, on which scholars have implicitly or explicitly rested positions like the countermajoritarian objection to constitutional judicial review, is objectionably unrealistic. 2. A "constitutional conception" of popular sovereignty derived primarily from the "constitutional patriotism" associated with Jürgen Habermas and others can resolve the key defects of the mechanical conception, and, by providing a conceptual basis for an understanding of the We the People of constitutional law as a corporate body extending across time, can also legitimate countermajoritarian constitutional law. 3. However, the constitutional conception cannot justify states, such as the United States, characterized by the durable exclusion of some legitimate members of the polis from political institutions. Even under the constitutional conception, the United States is not a legitimate constitutional democracy in virtue of its treatment of Black Americans. 4. Nonetheless, there is an important tradition in Black American constitutional thought, beginning with Frederick Douglass, which represents American constitutional institutions as conditionally worthy of attachment in virtue of their latent normative potential and the possibilities those institutions offer for claiming inclusion. That tradition can continue to give Americans reasons to hold onto their constitutional institutions even though they are not, strictly speaking, democratically legitimate.

• Stacy Hawkins (Rutgers): Trump’s Dangerous Judicial Legacy
  Reviewing statistical data on the composition of the federal judiciary over the last 30 years, including the appointments made by President Trump during his first eighteen months in office, this paper describes what appears to be President Trump’s deliberate attempt to reverse a decades-long trend by his presidential predecessors to diversify the federal judiciary and imagines both the motivations for and consequences of this effort. The long-standing commitment to judicial diversity that President Trump seems to be rejecting reflects an acknowledgement by his predecessors that the legitimacy of our justice system relies on diverse citizens being able to repose their trust in this key democratic institution (the courts) by seeing themselves and their interests adequately reflected among its chief decision-makers (judges). By contrast, Trump’s remaking of the federal judiciary can be seen as part of his larger rhetorical commitment to “Make America Great Again” and an increasingly evident agenda instinct in that commitment of “whitewashing” America. Combining the statistical data on the rapidly shifting demography of the judiciary under President Trump with insights from the scholarly literature on theories of procedural justice and representative bureaucracy, which suggest that the diversity of judges matters to citizens’ perceptions of justice, this paper suggests that President Trump’s “whitewashing” of the federal judiciary has grave consequences for the legitimacy of our courts in the eyes of an increasingly diverse citizenry. 
  
  
• Maryam Jamshidi (NYU): Citizen Privatization’s Threat to American Democracy 
  Scholars have lamented the threat to liberal, democratic values posed by government outsourcing to for-profit companies and contractors. They have, however, largely ignored the implications for democracy where government work is delegated to private citizen volunteers. These “citizen privatizers” are volunteering in various parts of government, particularly in the national security sector, where they are reporting suspicious activities to local authorities, working with local and federal law enforcement to implement government policies in their communities, and serving as private attorneys general to enforce the government’s counter-terrorism objectives. This Article argues that these and other forms of citizen privatization potentially threaten democracy by undermining a value at the heart of the American form of government – popular sovereignty. Popular sovereignty, or the “will of the people,” is critical to ensuring that government remains answerable and accountable to its citizens. It depends upon a vibrant civil society, public deliberation on matters of popular concern, and respect for dissent, all of which require a meaningful separation between the people and the state. By flattening that separation, citizen privatizers potentially threaten these three key elements of popular sovereignty.F ocusing on the national security space, this Article present a new theory of privatization that demonstrates when and how citizen privatizers may threaten liberal democracy.